Independent Evaluation

Parents have no practical way to assert their legal right to an outside evaluation if they disagree with the school district's assessment.

By Dave Frankel and Josh Kershenbaum

Your school district has just evaluated your child and handed you its Evaluation Report or ER. Now what?

Basically, you have two choices. You can accept the district’s ER and use it to help develop a special educational program for your child, such as an IEP or 504 Plan. But what if you’re not sure the district’s ER is accurate or, even worse, if you’re pretty sure it’s wrong? This is when things get tricky.

You might have heard that federal special education laws give parents the right to a free “second opinion” of sorts — an evaluation paid for by the school district but performed by an independent expert, formally known as an Independent Educational Evaluation or IEE.

Where to Find an Evaluator

Ask a trusted friend, doctor or other professional who works with your child to recommend an expert to perform an IEE. An experienced special education attorney can also provide suggestions.

That’s true, but unfortunately, the same law that gives parents this right leaves most parents without any practical way of asserting it. Here’s why.

‘Fund or Fight’

Under the law, if parents exercise their “right” to request a district-funded IEE, the school district has only two ways to respond. It can either agree to pay for the IEE or it can file a Due Process Complaint against the parents to defend their ER!

We call this “fund or fight” and consider it a terrible flaw in special education law. The practical effect of fund or fight is that before they can ever effectively use their so-called “right” to a district-funded IEE, parents will probably have to hire an expert to demonstrate at a due process hearing that the district’s ER is insufficient.

What the Law Says

The federal regulation that tells us all the “ingredients” that are supposed to go into a district’s evaluation is 34 C.F.R. § 300.305.

In addition, because the due process hearing is a legal proceeding in which the district will be represented by its lawyer, parents will be at a significant disadvantage unless they also hire a lawyer. The bottom line is that it often costs more for parents to assert their “right” to a district-funded IEE than simply to pay for the IEE themselves!

What Should You Do?

Don’t make the mistake of asking for a district-funded IEE without fully considering whether you are prepared, both emotionally and financially, to fight your school district. If you have a special education attorney, ask what it could cost to fight the school district and how long the process might take. Also, identify and learn the cost of an appropriate independent evaluator. You can then decide whether to bear the cost yourself, and whether to seek reimbursement.

Finally, parents can work to change this unfair law. Contact your representatives. Let them know that a “right” that costs more than it’s worth is no right at all.

IEE Questions To Ask

Here are questions to ask when choosing an expert for an Independent Educational Evaluation.

• In what areas are you licensed or certified? (It’s good to have someone who is licensed in your state.as a school psychologist.)

• What is your experience with my child’s diagnostic category?

• What age group do you typically serve?

• Do you know educators at my child’s school district?

• Do you ever consult for school districts? Do you do so with mine?

• What is the cost of an evaluation? Is your report included in the cost?

• How long will the evaluation take?

• Do you attend the IEP meeting?

• Can you critique my child’s IEP?

• Will you consult with my child’s therapists?

• Are you willing to testify at a due process hearing if necessary? Have you done it before?

Dave Frankel and Josh Kershenbaum are special education attorneys in West Conshohocken, PA. MyKidsLawyer.com.

In New Jersey the school district must provide the requested independentEvaluation without undue delay, unless it initiates a due process hearing within 20 calendar days to show that its evaluation is appropriate. Upon receipt of the request, they must provide parents information about where they can obtain an independent evaluation and criteria for Independent evaluations.

Thegus, that's right. It's also true in Pennsylvania. However, for the reasons we explain in the article, this rule rarely helps parents at all. Basically, by requiring the District to "fund or fight" the rule encourages Districts to file for Due Process (fight) against parents who request an independent evaluation. It costs the District almost nothing to file this Complaint, but it would cost Parents a lot to have a reasonable chance of winning at hearing. The result? This rule doesn't really give Parents the right to the independent evaluation at all, and actually makes that right all but impossible for most parents to assert.